Madras High Court

Unknown vs State Rep By Its on 2 June, 2023

                                                                     Crl.O.P..No.12313 of 2023


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                           DATED: 02.06.2023

                                                CORAM:

                        THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN

                                        Crl.O.P.No.12313 of 2023
                                       and Crl.M.P.No.7534 of 2023

                1.Ramalingam

                2.Rajasekar

                3.Murugaiyan

                4.Mahaligam

                5.Rajendran

                6.Raghuraman

                7.Pazhanivel

                8.Paramasivam

                9.Srinivasan

                10.Illayaraja

                11.Arasupriyan

                12.Pazhani

                13.Ponnusamy

                14.Sudha

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                                                                                  Crl.O.P..No.12313 of 2023




                15.Thenmozhi

                16.Annalakshmi

                17.Muthusamy                                    ... Petitioners

                                                         Vs.

                1.State Rep by its
                  Inspector of Police,
                  Kattumannarkoil Police Station,
                  Cuddalore District
                  (Crime No.546 of 2017)

                2.ShyamSundar
                  Inspector of Police,
                  Kattumannarkoil Police Station,
                  Cuddalore District.                           ... Respondents

                PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
                to call for the records in Crime No.546 of 2017 pending Inspector of Police,
                Kattumannarkoil Police Station, Cuddalore District, Cuddalore District and
                quash the same.


                                  For Petitioners   : Mr.P.Dhileepan
                                  For Respondents : Mr.Leonard Arul Joseph Selvam
                                              Government Advocate (Crl. Side)
                                              (For R1)

                                                       ORDER

This Criminal Original Petition has been filed to call for the records in

Crime No.546 of 2017 pending on the file of the Inspector of Police,

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Kattumannarkoil Police Station, Cuddalore District, and quash the same.

2.The learned counsel for the petitioners submitted that the allegations

in the First Information Report are that, on 22.11.2017 at about 11.00 a.m.

near Moovur Fair Price Shop, petitioners unlawfully assembled and protested

against the then Government for not properly distributing the ration goods to

the general public and that they had wrongfully restrained free flow of traffic

and movement of the public. Therefore, the First Information Report in Crime

No.546 of 2017 was filed under Sections 143 and 188 I.P.C. Hence, this

petition is filed for quashing.

3.He further submitted that this Court in Crl.O.P.No.17903 of 2021 and

Crl.O.P.No.11291 of 2022 quashed the cases registered under Section 143 and

341 of IPC and 143, 188 and 341 of IPC respectively, on the ground that, the

petitioners therein were engaged in protest, which is their fundamental right.

No public lodged complaint and no public got affected, due to the protest

conducted by the petitioners. Petitioners had only raised slogans against the

Government and the same would not amount to commission of offence and it

is a fundamental right under the constitution of India.

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4. The learned counsel for the petitioners relied upon a Judgment in

Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994(1)

Crimes, Page 477. He also relied upon a Judgment in a batch of quash

petitions, reported in 2018-2-L.W. (Crl.) 606 in Crl.O.P. (MD).No. 1356 of

2018, dated 20.09.2018 in the case of Jeevanandham and others Vs. State

rep. by the Inspector of Police, Karur District, and this Court held in

Paragraph-25, as follows :-

"25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:

a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.

b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.

c) The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant

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Crl.O.P..No.12313 of 2023

concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.

d) In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;

i) that there must be an order promulgated by the public servant;

ii) that such public servant is lawfully empowered to promulgate it;

iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and

iv)that such disobedience causes or tends to cause;

(a) obstruction,annoyance or risk of it to any person lawfully employed; or

(b) danger to human life, health or safety; or

e) The promulgation issued under Section 30(2) of

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Crl.O.P..No.12313 of 2023

the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.

f) The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.

g) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section12.As per Section 468 of Cr.P.C., the final report ought to have been filed within a period of one year from the date of commission of offence when an offence is punishable with imprisonment which may extend to one year. The F.I.R. was registered in this case on 21.07.2020. Till date, final report is not filed. Therefore, even if the final report is filed now, in view of the bar under Section 468 of Cr.P.C., the Court cannot take cognizance of the offences. In view of the above, continuance of the criminal proceeding in Crime No.560 of 2020 against the petitioners is nothing but an abuse of process of law.

172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than

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Crl.O.P..No.12313 of 2023

Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.

h) The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.

5.The learned Government Advocate (Criminal side) opposed this

petition on the ground that petitioners were requested to stop the protest, but

they continued their protest and raised slogans against the Government for

not properly distributing ration goods to the general public. Therefore, First

Information Report in Crime No.546 of 2017 was registered. Thus, he prayed

for dismissal of this petition.

6.Considered the rival submissions and perused the records. It is

pertinent to refer to the offences for which FIR was registered in this case.

7.This Court in Crl.O.P.No.23022 of 2022 while dealing with quashing

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Crl.O.P..No.12313 of 2023

of case registered under Section 143 & 341 I.P.C observed that only if the

unlawful assembly confirms to the definition of unlawful assembly as defined

under Section 141 IPC, the member of unlawful assembly can be prosecuted

under Section 143 IPC. It is also relevant to note the definition of Unlawful

Assembly:

“Unlawful Assembly-

An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is -

(i) to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

(ii) to resist the execution of any law, or of any legal process; or

(iii) to commit any mischief or criminal trespass, or other offence; or

(iv) by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the

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Crl.O.P..No.12313 of 2023

use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(v) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.-

8. Section 143 of IPC reads as follows:

“143. Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.”

In the case before hand, there is no specific allegations against the

petitioners or any of the member of the unlawful assembly that they used

criminal force with a common object of overawe the Central or State

Government, resisted the execution of any law or of any process, committed

any mischief or criminal trespass, take possession of any property, deprive

any person of the enjoyment of a right of way, or of the use of water or other

incorporeal right, compelled any person to do what he is not legally bound to

do or to omit to do what he is legally entitled to do. In the absence of specific https://www.mhc.tn.gov.in/judis

Crl.O.P..No.12313 of 2023

allegations in this regard, it is no doubt that the alleged assembly cannot be

considered as unlawful assembly and the members of alleged unlawful

assembly cannot be prosecuted for the offence under Section 143 IPC.

Therefore, this Court is of the considered view that the ingredients for

prosecuting the petitioners under Section 143 is not made out and the

continuation of trial would be a harassment to the petitioners.

9. Section 188 of IPC reads as follows:

“188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of

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Crl.O.P..No.12313 of 2023

either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

In the Judgment reported in [2018 2 LW (Crl) 606] “Jeevanandham

and others Vs The Inspector of Police Velayuthampalayam Police Station,

Karur District” dated 20.09.2018, it has been held that the police has no right

to file a case under Section 188 IPC and to investigate the same without

informing about the commission of offence under Section 188 IPC to the

public servants concerned/authorities to enable such public servants to give

complaint in writing before the learned Jurisdictional Magistrate who shall

take cognizance of the complaint, on being prima facie satisfied with the

requirements of Section 188 IPC. No such procedure has been followed in

this case. In such circumstances, the respondent has no right to register the

case and to investigate the matter.

10.As per Section 468 of Cr.P.C., the final report ought to have been

filed within a period of one year from the date of commission of offence when

an offence is punishable with imprisonment which may extend to one year.

The F.I.R. was registered in this case on 22.11.2017. Till date, final report is

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not filed. Therefore, even if the final report is filed now, in view of the bar

under Section 468 of Cr.P.C., the Court cannot take cognizance of the

offences. In view of the above, continuance of the criminal proceeding in

Crime No.546 of 2017 against the petitioners is nothing but an abuse of

process of law.

11.In conclusion, for the reasons stated above, this Court finds that